Guerrilla Warfare at the Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

Is there a guerrilla war under way against the death penalty? Justice Samuel Alito proposed the idea Wednesday when the U.S. Supreme Court heard oral arguments about the use of the drug midazolam while administering lethal injections. The answer, to put it bluntly, is yes: Death-penalty abolitionists, unable to persuade either the public or the courts to prohibit the death penalty absolutely, rely on all the legal means available to them. Their arguments before the court are politics by other means -- Clausewitz’s famous description of war.

The guerrilla tactic that brought the advocates before the court this week worked just as Alito alleged. First, the opponents pressured pharmaceutical companies and compounding pharmacies not to provide drugs that would effectively paralyze and kill. Next, they asked the courts to strike down the use of the inferior drugs that are left for the states to use, because those drugs don’t work reliably.

That such an indirect legal war against capital punishment exists doesn’t end the matter. It leaves open the more fundamental question: Is the use of such legal tactics as a form of political warfare in any way illegitimate? Or is it simply a normal tactic employed by almost all social movements, including those as politically disparate as anti-abortion groups and gay-rights activists?

Start with Alito’s view, which to his credit he expressed in open court. He first acknowledged that the death penalty is “controversial as a constitutional matter. It certainly is controversial as a policy matter.” He then explained what he thought was legitimate political and legal action: “Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty.” Yet, Alito concluded, neither the legislature nor the courts had abolished the death penalty, and the abolitionists instead engaged in their tactical, “guerrilla” approach of affecting the drug supply and then challenging its legality.

Notice that Alito was not making the familiar argument that controversial policy matters should be resolved by the legislature, not by the courts. That’s actually a pretty good argument, albeit one that has lost some of its currency in this era of extreme judicial activism on both conservative and liberal sides. The death penalty is in fact politically controversial, and it’s not unreasonable to claim that as a result, the court should avoid deciding the question definitively and wait for the public to make up its mind.

Yet in making his point, Alito either couldn’t or wouldn’t rely on the familiar distinction between policy and constitutional law -- presumably because the court is so thoroughly in the business of ruling on capital punishment already. Indeed, the tradition of the Supreme Court assessing the constitutionality of the death penalty itself in various mechanisms for sentencing and punishment goes back more than 40 years, to Furman v. Georgia, the 1972 case in which the court temporarily halted the death penalty nationally by holding that it was cruel and unusual because of the arbitrariness of its application.

That means Alito must be arguing something more subtle. According to his view, it’s fair to challenge the death penalty both in legislatures and in courts. What’s unjustified is to attack capital punishment obliquely, by going at the technicalities of its administration -- what Justice Harry Blackmun at the end of his career famously called “the machinery of death.”

What makes that technique unfair? The guerrilla metaphor is instructive. Real armies, goes the theory, attack frontally on the battlefield. Calling the death penalty morally wrong and unconstitutional would count as a frontal assault. Guerrillas don’t fight that way. They frustrate conventional opponents by sneaking around. Sometimes they don’t wear uniforms. Sometimes they hide among civilians. In these ways they may violate the international laws of war -- which are, of course, written by states that have conventional armies, not by guerrilla fighters.

According to Alito, what’s wrong with guerrilla attacks on the death penalty is that they frustrate the constitutional and political process, which should involve direct arguments. By implication, the legal and political debate should be meaningful and not obfuscated in a miasma of tactics.

Generally speaking, I think Alito is probably right about this. We do better constitutional law and politics when we actually debate our values and our preferences. We have a lot to gain from talking about controversial issues, and little to gain from dancing around them.

Yet the reality has often been otherwise. Consider the anti-abortion movement, which, like the movement against the death penalty, hasn’t had a definitive victory in the courts since Roe v. Wade. Anti-abortion advocates pass laws that chip away at the edges of the abortion right, for example by prohibiting particular techniques. Then they urge the courts to find these restrictions constitutional. When the laws cut against them, like the creation of buffer zones around abortion clinics, the anti-abortion groups challenge those laws as violations of free speech. In neither circumstance do the advocates say what they really mean: that abortion is morally wrong and should be condemned.

The gay-rights movement has similarly pursued a piecemeal legal strategy that could be characterized as guerrilla warfare. It has offered a wide array of arguments in seeking the right to marry, ranging from privacy to equality to dignity. It’s challenged marriage prohibitions at both state and federal levels. The recent struggle between a federal district court and the Alabama state courts counts as guerrilla warfare running in all directions, fueled by gay-rights advocates as well as opponents. Instead of arguing squarely about a constitutional right to marriage, that debate has largely been over the technical question of whether a federal district court decision binds state courts.

What makes these guerrilla techniques legitimate is that everyone involved knows what the real, underlying issue is. Deciding controversial moral questions in the courts may be a funny way to do business. But as Americans, we know the rules -- and those rules allow us to try to win using any means necessary.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more